Citation NR: 9603893
Decision Date: 02/06/96 Archive Date: 03/07/96
DOCKET NO. 90-48 546 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUES
1. Entitlement to restoration of service-connected post-
traumatic stress disorder (PTSD).
2. Entitlement to an increased evaluation for PTSD,
previously assigned a 10 percent evaluation.
3. Entitlement to restoration of service connection for a
shell fragment wound to the left anterior tibia.
4. Entitlement to an increased evaluation for the residuals
of a shell fragment wound to the left anterior tibia,
previously evaluated as noncompensable.
5. Entitlement to service connection for the residuals of a
shell fragment wound to the right leg.
6. Entitlement to service connection for a bilateral knee
disability.
7. Entitlement to service connection for bilateral carpal
tunnel syndrome, both wrists.
8. Entitlement to service connection for kidney stones.
9. Entitlement to service connection for residuals of
postoperative small intestine surgery.
10. Entitlement to a compensable evaluation for hemorrhoids.
11. Entitlement to a compensable evaluation for the
residuals of a nasal fracture.
12. Entitlement to a compensable evaluation for migraine
headaches.
13. Entitlement to a compensable evaluation for dermatitis.
14. Entitlement to a compensable evaluation under 38 C.F.R.
§ 3.324 (1995).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARINGS ON APPEAL
The appellant and his spouse.
ATTORNEY FOR THE BOARD
John J. Crowley, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1945 to
February 1956 and from August 1956 to February 1967.
This matter is currently before the Board of Veterans'
Appeals (Board) on appeal from rating decisions of the
Department of Veterans Affairs (VA) Regional Office (RO).
This case was previously before the Board in April 1990, at
which time the Board remanded the case to the RO for
additional development. At that time, the issue of
entitlement to increased evaluations for the veteran's
service-connected PTSD and the residuals of a shell fragment
wound to the left anterior tibia was before the Board. In an
administrative decision dated February 1993, the RO found the
veteran had presented falsified documents and made false
declarations. In March 1993, the RO proposed severance of
service connection for PTSD pursuant to 38 C.F.R. § 3.105(d)
on the basis of clear and unmistakable error in the rating
decision of January 1989 which established service connection
for PTSD. In December 1994, the RO proposed severing the
veteran's service connection for a shell fragment wound to
the left anterior tibia. In February 1995, the RO severed
service connection for PTSD and a shell fragment wound to the
left tibia. The RO also denied entitlement to a compensable
rating under 38 C.F.R. § 3.324.
The Board must review all issues which are reasonably raised
from a liberal reading of the veteran's substantive appeal.
EF v. Derwinski, 1 Vet.App. 324, 326 (1991). Further, as has
been noted by the United States Court of Veterans Appeals
(Court), the statute (§ 7105) does not impose technical
pleading requirements. Tomlin v. Brown, 5 Vet.App. 355
(1993). Based on a review of the procedural history in this
case, including the veteran's written statements and
testimony, the undersigned has determined that he desires to
appeal the issues listed above and has met all the procedural
requirements under § 7105(a) (West 1991) to appeal these
issues to the Board at this time. However, the issue of
entitlement to a compensable rating under 38 C.F.R. § 3.324
has not been addressed by a statement of the case or
supplemental statement of the case, and it will be further
addressed in a remand at the end of this decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO committed error in the
February 1995 rating decision that severed service connection
for PTSD and a shell fragment wound to his left leg. It is
contended that the evidence supports a basis for service
connection and that the statutory and regulatory provisions
in effect at the time service connection was allowed for
these disabilities were correctly applied by the RO. He
asserts that the service personnel records clearly prove that
he was a prisoner of war (POW) of the North Korean Government
from January 1951 to September 1953 and that he was in combat
in World War II and Korea. It is contended that the
veteran's numerous diagnoses of PTSD from VA medical
personnel would support the January 1989 rating decision.
It is also contended that the veteran currently suffers from
a shell fragment wound to the right leg, a bilateral knee
disability, carpal tunnel syndrome, as well as the residuals
of kidney stones and small intestine surgery. Further, it is
argued that his service-connected hemorrhoids, migraine
headaches, dermatitis, and the residuals of a nasal fracture
have caused him residual disability.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West
1991), following review and consideration of all the evidence
and material of record in the veteran's claims file, and for
the following reasons and bases, it is the decision of the
Board that the evidence is clearly and unmistakably against
the claims for restoration of service connection for PTSD and
the residuals of a shell fragment wound to the left anterior
tibia. It is the further decision of the Board that the
veteran has not met the initial burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that his claims for service connection for a shell
fragment wound to the right leg, a bilateral knee disability,
carpal tunnel syndrome of both wrists, kidney stones, and
residuals of postoperative small intestine surgery are well
grounded. It is the further decision of the Board that the
preponderance of the evidence is against the veteran's claims
of entitlement to compensable evaluations for hemorrhoids,
the residuals of a nasal fracture, migraine headaches, and
dermatitis.
FINDINGS OF FACT
1. All relevant evidence for an equitable disposition of the
veteran's appeal has been obtained insofar as possible.
2. The veteran has made fraudulent statements to incorrectly
reflect the award of the Purple Heart Medal and in asserting
that he was held as a POW of the North Korea government.
3. Service connection for PTSD was established by rating
action in January 1989, and severed by rating action in
February 1995.
4. There is no objective evidence or credible supportive
evidence of the alleged inservice stressors.
5. Service connection for a shell fragment wound of the left
anterior tibia was established by rating action in January
1989, and severed by rating action in February 1995.
6. There is no reasonable basis for the initial grant of
service connection for a shell fragment wound to the left
anterior tibia since such a wound was not demonstrated in
service.
7. The veteran's claims of service connection for a shell
fragment wound to the right leg, a bilateral knee disability,
carpal tunnel syndrome of both wrists, the residuals of
kidney stones, and the residuals of a postoperative small
intestine surgery are not meritorious on their own or capable
of substantiation.
8. The veteran has no objective impairment attributable to
hemorrhoids, the residuals of a nasal fracture, migraine
headaches, or dermatitis.
9. The veteran’s subjective and unsubstantiated complaints
of pain and flare-ups associated with his service-connected
disabilities are found not credible.
CONCLUSIONS OF LAW
1. The January 1989 rating decision, awarding service
connection for PTSD, constituted clear and unmistakable error
and the severance of service connection in February 1995 is
upheld. 38 C.F.R. § 3.105 (as in effect in 1989).
2. The January 1989 rating decision, awarding service
connection for a shell fragment wound to the left anterior
tibia, constituted clear and unmistakable error and the
severance of service connection in February 1995 is upheld.
38 C.F.R. § 3.105 (as in effect in 1989).
3. The veteran's claims of entitlement to service connection
for a shell fragment wound to the right leg, a bilateral knee
disability, carpal tunnel syndrome of both wrists, the
residuals of kidney stones, and the residuals of
postoperative intestine surgery are not well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
4. The criteria for a compensable rating for hemorrhoids
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. §§ 3.321(b), 4.2, 4.3, 4.7, 4.10, 4.40, Part 4,
Diagnostic Code 7336 (1995).
5. The criteria for a compensable rating for the residuals
of a nasal fracture have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.2, 4.3, 4.7, 4.10,
4.40, Part 4, Diagnostic Code 6502 (1995).
6. The criteria for a compensable rating for migraine
headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. §§ 3.321(b), 4.2, 4.3, 4.7, 4.10, 4.40,
Part 4, Diagnostic Code 8100 (1995).
7. The criteria for a compensable rating for dermatitis have
not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. §§ 3.321(b), 4.2, 4.3, 4.7, 4.10, 4.20, 4.40,
Part 4, Diagnostic Code 7806 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran seeks entitlement to restoration of service
connection for PTSD and the residuals of a shell fragment
wound to the left anterior tibia. Direct service connection
may be granted for any disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disease was incurred or aggravated
during active service. 38 U.S.C.A. § 3.303(d) (as in effect
in 1989). The regulations also provide that previous
determinations of service connection will be accepted as
correct in the absence of clear and unmistakable error.
Consequently, where the evidence establishes such error, the
prior decision will be reversed or amended. 38 C.F.R.
§ 3.105(a). In addition, service connection will be severed
only where the VA demonstrates through the evidence of record
at that time that the prior grant of service connection was
clearly and unmistakably erroneous. Id. The Court has held
that, in order for there to be clear and unmistakable error
in the prior adjudication under 38 C.F.R. § 3.105(d), either
the correct facts, as they were known at the time, were not
before the adjudicator or the statutory or regulatory
provisions at that time were incorrectly applied. See
Russell v. Principi, 3 Vet.App. 301, 313 (1992) (en banc).
With regard to the veteran's claims of entitlement to service
connection for the disabilities listed above, the threshold
question is whether the veteran has presented evidence of
well-grounded claims; that is, claims that are plausible and
meritorious on their own and capable of substantiation. If
he has not, his appeal must fail. 38 U.S.C.A. § 5107(a);
Murphy v. Derwinski, 1 Vet.App. 78 (1991). If he has
submitted evidence of well-grounded claims, there is no duty
to assist him in developing facts pertinent to the claims.
38 U.S.C.A. § 5107(a).
With regard to the veteran's claims of entitlement to
increased compensation for the service-connected disabilities
listed above, a claim for an increased evaluation is well
grounded if the veteran indicates that he has suffered
increased disability. Proscelle v. Derwinski, 2 Vet.App.
629, 632 (1992); Jones v. Brown, 7 Vet.App. 134, 138, (1994).
Accordingly, the undersigned must find that the veteran's
claims for increased compensation for his service-connected
disabilities are well grounded within the meaning of
38 U.S.C.A. § 5107(a). The Board is satisfied that all
available evidence necessary for evaluating the veteran's
service-connected disabilities has been obtained. Where
entitlement to compensation has already been established, and
an increased disability evaluation is at issue, it is the
present level of disability that is of primary concern.
Francisco v. Brown, 7 Vet.App. 55, 58 (1994). Accordingly,
while the veteran's service-connected disabilities will be
evaluated in light of their history, the undersigned will
summarize only the most recent medical evidence and
assertions of the veteran regarding these issues.
I. Background
Within the veteran's service induction examination of
September 1945, he reported that he had no previous military
service. This is significant in that the veteran currently
contends having served on active duty prior to September
1945. Service medical records reveal regular medical
treatment at several United States service medical facilities
from January 1951 to September 1953. This period of active
service is also significant as the veteran currently claims
to have been a POW of the North Korean Government during this
time. Service medical records reveal treatment which
includes, but is not limited to, the following:
(1) Immunization or vaccinations at United
States military medical facilities in March
1951, May 1952, August 1953, and September
1953;
(2) A report of medical examination for
discharge and reenlistment dated January 1951;
(3) Treatment for hemorrhoids in January 1952;
(4) Treatment for migraine headaches in 1952;
(5) A proctoscopic examination in January
1952;
(6) Treatment for a right ankle injury in
March 1953;
(7) A hospitalization for migraine headaches
in June 1953; and
(8) Treatment for a fractured nose in December
1950 at the United States Air Force Hospital,
Wiesbaden Military Post, Wiesbaden, West
Germany.
The veteran's service medical records, including frequent
service medical evaluations, reveal no indication that the
veteran was a POW of the North Korean Government or served in
Korea. A review of the service medical records reveal no
treatment for PTSD, a shell fragment wound, carpal tunnel
syndrome, a bilateral knee disability, or surgery performed
on the veteran's small intestine.
In June 1958, the veteran was hospitalized with pain in the
left CVA region. The veteran was seen at the urology clinic
at Lackland Air Force Base. Efforts to assist the veteran in
passing a kidney stone failed. Blood chemistry
determinations in late July 1958 were normal. The final
diagnosis noted calculus in the ureter, left. No kidney
stone disorder was diagnosed.
In his September 1966 separation examination, the veteran
noted occasional left frontal headaches, asymptomatic
hemorrhoids from 1947 to the present, painful urination for
one month in 1958 with no recurrence, and shrapnel wounds at
the anterior tibial area in 1952 with scars. The veteran
denied any other significant medical history. Examination of
the veteran's anus and rectum was normal. No disability
pertinent to the veteran's current claims was found. The
veteran was discharged from active service in February 1967.
A review of the veteran’s service personnel record leads the
Board to the determination that the veteran has attempted to
commit fraud upon the VA. The veteran's Airman Military
Record reveals the award of the Purple Heart. This report
appears based upon the service's review of the veteran's
DD Form 214. The undersigned has reviewed the pertinent DD
Form 214 in question. The service DD Form 214 for the
veteran's active service from February 1951 to February 1956
notes the following entries:
ETO, Arny Commendation, Purple Heart, American Defence
The word “Army” and “Defense” are misspelled. They appear to
have been typewritten on the form by the veteran.
Significantly, this DD 214 notes the veteran entered active
service in this period in February 1951 in Wiesbaden, West
Germany. As noted above, the veteran has contended that in
February 1951 he was a POW of the North Korean Government.
The veteran's DD Form 214 from the veteran’s period of active
service from August 1956 to August 1959 cites no decorations,
medals, badges, commendations, citations and campaign ribbons
awarded or authorized. It also indicates that he received no
wounds as a result of action with the enemy. The veteran's
DD Form 214 for the veteran's period of active service from
August 1959 to August 1965 notes no award of the Purple Heart
or any decorations, medals, or badges signifying combat with
the enemy. This report also notes no wounds received by the
veteran as a result of action with enemy forces. This DD 214
is also corroborated by the veteran's DD 214 for his period
of active service from August 1965 to February 1967.
It must be noted by the Board that information retrieved from
the National Personnel Records Center reveals that the
veteran underwent a bad conduct discharge in February 1956
which resulted from a conviction by a general court-martial.
His sentence included a reduction in rank, forfeiture of pay,
and discharge. The evidence also showed that in August 1956
the Secretary of the Air Force remitted the remaining portion
of the veteran's sentence and restored him to duty contingent
upon his completion of an oath of enlistment for a period of
3 years. The veteran has subsequently had his period of
service from February 1951 to February 1956 amended and his
discharge for this period was upgraded to honorable. This
was by action of the Air Force Board of Correction of
Military Records based upon an application received from the
veteran in September 1990. It is important to note that his
newly amended DD Form 214 lists no award of the Purple Heart.
It also notes that the veteran underwent educational training
at a sentry dog training school for three weeks in November
1953. As will be noted below, the veteran has contended that
in November 1953 he was recovering from his POW experiences
in a U.S. military hospital in Japan. A review of the
veteran's general court-martial proceeding fails to reveal
any indication that the veteran was a POW or was awarded the
Purple Heart.
In July 1987, 20 years after the veteran's active service,
the veteran filed a claim of entitlement to service
connection for a leg injury occurring in Korea in 1952.
Significantly, when asked had he ever been a POW, he
responded in the negative.
In what appears to be a VA Patient Information Sheet dated
July 1987, it is reported that the veteran spent nearly
$80,000 in 1985 buying two high-priced automobiles along with
restaurant and dining expenses. In March 1987, he was
hospitalized at a VA Medical Center with an adjustment
disorder with mixed emotional features, a bipolar disorder,
in remission, and marital discord. At that time the
veteran's chief complaint was stress referable to his spouse.
At that time it was also noted he had a history of manic
psychoses beginning in 1985. Significantly, physical
examination reported none of the physical disabilities at
issue before the Board at this time.
In August 1987 the veteran was rehospitalized for a bipolar
disorder with an alleged onset of 1960. It was reported at
that time that the veteran, at age 11, became a ward of the
court secondary to physical abuse by his mother and
subsequently grew up in a group home. No complaints or
diagnosis revealing any of the physical disabilities at issue
were indicated by the VA medical staff. The veteran was
discharged in September 1987.
In October 1987 the veteran was evaluated at a VA Medical
Center for compensation and pension rating purposes. The
examiner noted that the veteran appeared to have a long
history of bipolar disorder, formally diagnosed in 1985. The
examiner also noted that in 1962 and 1970 he had what were
probably "manic episodes." However, a diagnosis of manic-
depressive disorder was not made until 1985. The veteran
stated that he had active combat experience in Korea from
1951 to 1952. It was noted that the veteran used to have
occasional nightmares of combat, but no intrusive memories,
nightmares, or flashbacks at the present time were noted and
the veteran stated that he "does not feel that the combat
experience is impacting his life currently." The diagnostic
impressions were bipolar disorder, currently in remission,
with manic and depressive episodes in the past.
In an October 1987 VA general medical examination the veteran
reported kidney problems for approximately the last 30 years.
He noted renal stones about every two years. It was
indicated that the veteran usually had severe pain, went to a
hospital, and was given IV fluids. The last episode was in
1986. No renal surgery was noted. He currently had no
dysuria or hematuria. The veteran also reported that in 1986
he had an operation for hemorrhoids and has had intermittent
bleeding in his stool since this time. He denied abdominal
pain, nausea, vomiting or dysphagia. He stated that he would
see red blood cells in his stool every few months. It was
noted that the veteran was followed at a VA Medical Center
and had a barium enema with a colonoscopy approximately 3 to
4 years ago. It was also reported that he underwent
bilateral carpal tunnel release in 1976. The veteran
indicated that this procedure did not help his symptoms,
which consisted of numbness in both hands with decreased grip
strength.
Review of the physical examination in October 1987 reveals no
objective medical evidence for any of the disabilities
currently at issue with the exception of the bilateral knee
disability. While the examiner noted a “history” of rectal
bleeding, this notation appears to come solely from
statements from the veteran to the examining physician. No
objective evidence of this condition was noted. The examiner
also noted the veteran's continuous "symptoms" of bilateral
carpal tunnel syndrome. However, no objective evidence of a
bilateral carpal tunnel syndrome was reported. Within the
October 1987 VA examination the veteran reported bilateral
knee pain radiating down to his feet whenever he stood for
long periods of time or walked greater than 1 mile. The
examiner's assessment included degenerative disease of the
knees with bilateral knee pain.
In a May 1988 statement, the veteran contended that in the
late 1940s he had undergone surgery for severe hemorrhoids.
He also noted that in the early 1950’s he was required to
undergo the removal of some of his large and small intestines
with reconstruction of his anus. He reported bleeding in his
rectum since this operation. The veteran also noted migraine
headaches as the result of nose surgery performed to
reconstruct his severely broken nose during his active
service. Migraine headaches that were so severe and painful
as to cause his left eye to swell were also indicated. He
also noted the blurring of his vision in the left eye, a
kidney stone disorder every 1 to 3 years apart (sometimes
twice a year), a loss of feeling in both hands in the late
1960s with surgery for carpal tunnel syndrome, and a manic-
depressive disorder recognized clinically in August 1986.
In a June 1988 statement the veteran reported being a POW of
the North Korean Government. This statement, occurring more
than 20 years after his active service, is the first
indication by the veteran that he was a POW. At this time he
also noted shrapnel wounds on his arms, legs, and groin. He
contends that he was held for 18 months in several prisons in
North Korea, including Hamhung, Wonsan, Sinuiju, and Chosen.
He noted being forced to watch South Korean soldiers being
tortured until they died. He also noted the use of alcohol
as a painkiller. The veteran reported mood swings of anger
and depression, nightmares, trouble in remembering, hearing
problems, pain and numbness in his hands, leg pain in cold
weather, soreness of the gums, severe headaches, trembling of
his hands, and difficulty holding objects.
In a POW protocol examination held in July 1988, the veteran
reported being in charge of security at a base called K-14 in
South Korea in October 1950. The veteran indicates that this
base was overrun on January 2, 1951. He stated that when
captured he sustained shrapnel fragments in his left forearm,
hand, and right forearm. He also noted that his testicles
and penis had been ripped open by the concussion of a mine.
While in prison camp he reported suffering from intimidation,
beatings, and physical and psychological torture. The
veteran reported being released in October 1953. He alleges
being sent to a Tokyo hospital for approximately nine months
to recover from his wounds.
In an October 1988 ex-POW protocol examination it was
reported that the veteran was "apparently" captured by North
Koreans during the Korean War from January 1951 until October
1953. The veteran now also reported that in World War II he
stepped on a mine, fracturing both legs and sustaining a
shrapnel injury in the left forearm and hand, right forearm,
and that his scrotal sac and penis were split open by a
concussion. He then noted that he went through some sort of
pinning for the fracture of his legs and was hospitalized for
approximately one year for this problem.
Physical examination at this time revealed a well-appearing
person in no acute distress. The examiner noted well-healed
surgical scars over the volar surfaces of both wrists.
However, review of the physical evaluation notes no objective
medical evidence of the disabilities at issue before the
Board with the exception of the carpal tunnel release. The
examiner's assessment indicated bipolar disorder, PTSD,
psoriasis, bilateral carpal tunnel syndrome, and gastritis by
history.
In a January 1989 rating decision, service connection was
awarded for PTSD and a shell fragment wound to the left
anterior tibia. The RO's rating decision appears based on
the veteran's statements that he was a POW. However, at that
time it was noted that the veteran's POW status had not been
verified by the National Personnel Records Center. The RO
was also under the belief that the veteran had received the
Purple Heart.
In May 1990 the veteran underwent a VA psychiatric
examination to reassess his PTSD. At that time, the veteran
noted joining the Army Air Corps in 1942. The veteran also
reported combat duty in World War II and being wounded by a
concussion mine in Mainz, Germany. It was reported that the
veteran was a POW from
January 1951 to September 1953. He also reported that he
drank excessively from 1962 to 1965 and developed recurrent
manic symptoms. It was indicated that he was diagnosed as
having manic-depressive illness in 1985. He continued
outpatient visits at the VA Medical Center on a bimonthly
basis. The examiner's diagnosis included PTSD, manic-
depressive illness, currently in remission, and alcohol
dependence, apparently in remission.
In a hearing held before a hearing officer at the RO in
November 1989, the veteran testified that he was a POW of the
North Korean Government from January 1951 to September 1953.
He reported that his capture occurred when he was coming from
a "seek and destroy mission." As he came back to the
encampment the North Koreans overran the outpost. When
specifically asked why VA records were completely negative
for POW records, the veteran stated that he did not know. He
indicated that he was assigned to Company G of the
24th Division during his capture. He also reported being
stationed in Korea approximately six months before being
captured.
The veteran also testified that he served in combat in World
War II. He contended that as a result of an injury suffered
during World War II he sustained severe damage to both of his
legs. He also indicated physicians had removed fluid off
both of his knees in an attempt to solidify his kneecaps. He
noted that his kneecaps were wired to his knees. It was also
contended that the veteran reinjured his legs during service
in Korea as a result of a shrapnel wound. He noted treatment
for these conditions in September 1950. He noted no other
problems with his legs from 1953 up to 1967. He also
reported that the surgical wires were still in place and
noted periodic swelling in his knees with pain and some
difficulties walking.
With regard to the veteran's hemorrhoid condition, he noted
that his hemorrhoids would flare-up anywhere from 3 to 4
months times a month to sometimes 6 or 7 times a month. He
noted difficulties with bowel movements aggravated by his
hemorrhoids.
With regard to the residuals of the veteran's service-
connected nasal fracture, the veteran reported difficulty
breathing with headaches. Migraine headaches, approximately
once or twice a week or one or two a month, were reported
with approximately 6 to 7 headaches every year with a
duration of approximately 3 to 6 days. He indicated
treatment with Tylenol and codeine for this condition. Pain
behind the left eye with nausea was also reported. With
regard to the veteran's claim of entitlement to a compensable
evaluation for dermatitis, the veteran noted periodic flare-
ups of this condition.
Concerning his claim of PTSD, the veteran noted difficulties
associating with his spouse, daughter, or doctors. He
reported that he spent most of his time in his room. He also
contended that his bipolar disability began bothering him
during World War II. He reported seeing a doctor for
psychiatric problems in Wiesbaden Hospital, Wiesbaden,
Germany, in 1940, 1946 and he believed once in 1948.
Testifying on the veteran's behalf was his spouse. The
veteran's spouse testified that bipolar disorder was first
diagnosed in 1985. She noted difficulties with the veteran
since 1958.
The veteran further testified that his first sign of carpal
tunnel syndrome began while on active duty in 1959. He noted
that he was issued hand splints at that time. The veteran
reported that he currently suffers from numbness in his
hands.
In regard to the veteran's claim of entitlement to service
connection for the residuals of kidney stones, the veteran
noted treatment for this condition in 1958. He reported
difficulties with this problem since 1958 with numerous
attacks of this condition once every two years. Finally,
with regard to the veteran's claim of entitlement to service
connection for status postoperative small intestine surgery,
he testified that surgery was performed in 1953 or 1954 at
Tokyo General. It was also indicated that these records were
missing. The veteran reported that he was released from the
Tokyo Army Hospital in 1954.
Recently submitted in support of the veteran's claim is an
"Announcement of Retirement" which appears to have been
signed by a Colonel Harry L. Downing at the McChord Air Force
Base, Washington, in February 1967. This announcement of
retirement from the United States Air Force reports that the
veteran was captured by the North Korean forces from January
1952 until his release at Panmunjon. Significantly, this
indicates that the veteran was captured by the North Korean
forces one year after the veteran testified that he was
captured by North Korean forces. This "Announcement of
Retirement" also notes that the veteran served overseas in
the European Theater of Operations from January 1943 to July
1945. It reports that the veteran received the Purple Heart
with two Oak Leaf Clusters.
In June 1991, the RO requested the veteran to sign a release
form in order to retrieve pertinent medical records from VA
medical facilities. In a June 1991 statement, he declined to
sign the release forms authorizing VA to retrieve these
medical records. In August 1991, the RO received from the
veteran authorization for release of these records.
In September 1992, the veteran underwent a VA medical
examination to determine the nature and extent of his
disabilities. Specific examination to determine the nature
and extent of his hemorrhoids revealed that the veteran was
"entirely asymptomatic at this time." The veteran had
undergone a full colonoscopy that year revealing benign
polyps. With regard to the veteran's migraine headaches and
the residuals of a nasal fracture, he reported severe frontal
headaches over the left eye occurring "at least once a year."
These headaches lasted for approximately 2 to 3 days at a
time. The last episode was two years ago. Significantly,
the examiner noted no objective medical evidence to support
this claim.
With regard to the residuals of an alleged shrapnel fragment
wound of the left anterior tibia, the veteran reported that
he stepped on a land mine in 1950 while in Korea. The
veteran noted occasional swelling and instability. However,
on physical examination no objective evidence revealing the
residuals of a shell fragment wound were found.
Significantly, X-ray studies that month of both lower legs
revealed "no significant abnormality." While X-ray studies
taken in September 1992 did reveal a bilateral knee
disability they do not show any wiring of the kneecaps
reported by the veteran in his testimony before the RO in
November 1989. Further, review of the September 1992 VA
examination by the Board reveals no objective medical
evidence of a shell fragment wound to the right leg, the
residuals of kidney stones, the residuals of postoperative
small intestine surgery, hemorrhoids, the residuals of a
nasal fracture, the residuals of a shell fragment wound to
the left anterior tibia, or any evidence of dermatitis. The
examiner reported a "history" of hemorrhoidectomy in 1945, a
"history" of nasal fracture with intermittent obstruction,
and a "history" of shrapnel fragment wound to both lower
extremities due to a land mine explosion.
In a September 1992 VA psychiatric evaluation of the
veteran's alleged PTSD, the examiner noted that the veteran's
prior military history as well as his previous accounts of
atrocities as a POW was “well-documented” by the May 1990 VA
psychiatric evaluation. The examiner accepted the veteran's
accounts of being a POW for 33 months. Objective findings
noted that the veteran was a "pleasant gentleman and appears
to relate his history in an open and honest manner." There
was no evidence of psychotic thought process and memory and
concentration were considered intact. The examiner diagnosed
PTSD with secondary intermittent major depressive symptoms
affecting social and occupational function and a history of
bipolar illness. The examiner stated that his episodes of
depression appear to be linked to his PTSD and not
necessarily to his bipolar disorder.
In a February 1993 administrative decision, the RO found that
the veteran presented falsified documents and made false
declarations with the knowledge that, if the falsified
documents and testimony were accepted as valid, he would
receive preferential consideration and possible monetary
benefits and medical treatment to which he would not
otherwise gain approval.” The RO based its determination on
the veteran's service medical records, revealing medical
treatment at service medical facilities from the period of
January 1951 to September 1953, when the veteran alleges he
was POW, a DD Form 214 which appears to have been altered to
include the Army Commendation and Purple Heart medals, and
verified service personnel records which reveal that the
veteran did not serve in combat during World War II.
In March 1993, the RO proposed to sever service connection
for PTSD retroactive to August 1, 1987, on the basis that the
previous granting of service connection for PTSD was found by
the VA based upon falsified evidence furnished by the
veteran. The veteran requested a hearing on this issue. At
a hearing held before the RO in June 1993, he testified that
he was in Korea four months prior to being captured. He
indicated he was captured at a base called “K-16” while
assigned to an Army unit of military police protecting the
perimeter of base. He noted this was both an Air Force and
Army base. The veteran also reported treatment at the Tokyo
General Hospital for approximately 6 to 8 months for beriberi
and scabies after his liberation in September 1953. When the
hearing officer informed the veteran that VA had no records
of his service during World War II, the veteran testified
that this was incorrect because he entered the service in
1942 and was discharged in 1945. The hearing officer noted
that in 1942 the veteran was 15 years old. The veteran
responded that in order to enter the service in 1942 he had
lied about his age. The
hearing officer also informed the veteran of the 1945 DD 214
Form, revealing no prior active service, as well as the
physical examination report of 1945, also revealing no prior
active service. The veteran responded that these records
were mistaken. In support of this contention, he noted that
had recently had his service personnel records amended to
indicate honorable service from February 1951 to February
1956. This amendment of the veteran’s service personal
record was noted by the RO in an August 1992 administrative
decision.
The veteran has submitted an October 1951 statement from S.
R. Brentnall, Major General, United States Air Force Vice
Commander indicating that the veteran received the Purple
Heart when wounded while protecting the perimeter of an
airstrip at "K-16."
The RO made additional efforts to determine whether the
veteran was a POW or awarded the Purple Heart. In June 1994,
the RO received a report from the Department of Air Force,
Assistant Inquiries Officer for Missing Persons and Inquiry
Divisions and Casualty Matters. The officer stated that a
review of records revealed no official Air Force document
reflecting that the veteran had ever been a POW. The
assistant inquiries officer stated, in pertinent part:
There is a copy of the "Announcement of
Retirement" in [the veteran's] MPR which
states "He was captured by the North
Korean Forces January, 1952 remaining a
prisoner of war until released at
Panmunjon." However, because it is a
copy and not an original, and because the
very document he himself submitted
contradict [sic] the dates he is claiming
to have been a POW, I cannot verify the
validity of the "Announcement of
Retirement."
In August 1994, the RO received a statement from the
Department of Air Force Personnel Center at Randolph Air
Force Base, Texas, verifying that the veteran had "never been
a prisoner of war." The personnel center response stated, in
pertinent part:
We cannot verify or dispute the entry on
his Form 7. We have however, [sic]
searched through his entire master
personnel record and can find no other
reference to a Purple Heart Medal. A
check with the Air Force office
responsible for awards and decorations
verifies there is no record of [the
veteran] ever being awarded a Purple
Heart or Silver Star. In reference to
the retirement certificate he submitted
to you, this is not an official Air Force
document. We have no way of verifying
the signature of Colonel Harry L.
Downing, which is on the certificate he
submitted.
In December 1994, the RO notified the veteran that it
proposed severing service connection for a left tibia shell
fragment wound, effective August 1, 1987. This proposal was
based, in part, on a finding that the veteran was not
awarded the Purple Heart Medal and that he was not held a POW
by the North Korean Government. In a February 1995
determination, service connection was severed for the
residuals of a left tibia shell fragment wound and for PTSD.
In his May 1995 substantive appeal, the veteran indicated
that he began his military service in September 1945. This
statement contradicts his testimony before the hearing
officer at the RO in June 1993, where he testified he began
active service in 1942. The veteran reiterated his
contention that he was a POW in North Korea and that his
wounds to the left tibia occurred during combat in Korea.
The veteran noted that all medical records of treatment and
hospitalization from 1950 to 1956 are missing from his
service medical records. He contended that this medical
evidence would show hospitalization for wounds received and
treatment administered after his release by the North Korean
Government in 1953.
II. Entitlement to Restoration of Service Connection
for PTSD
Service connection will be severed only where evidence
establishes that it is clearly and unmistakably erroneous.
In this case, the burden of proof is upon the VA. 38 C.F.R.
§ 3.105(d) (1995). In Damrel v. Brown, 6 Vet.App. 242
(1994), the United States Court of Veterans Appeals (Court)
established a three-prong test to establish clear and
unmistakable error:
(1) "[E]ither the correct facts, as they were known
at the time, were not before the adjudicator (i.e.,
more than a simple disagreement as to how the facts
were weighed or evaluated) or the statutory or
regulatory provisions extant at the time were
incorrectly applied, " (2) the error must be
"undebatable" and of the sort "which, had it not
been made, would have manifestly changed the
outcome at the time it was made," and (3) a
determination that there was [clear and
unmistakable error] must be based on the record
and law that existed at the time of the prior
adjudication in question.
Damrel, 6 Vet.App. at 245 (quoting Russell v.
Principi, 3 Vet.App. 310, 313-14.
In light of the above standard, the RO has made the
determination that the correct facts, as they were known at
that time, were not before the RO when it awarded the veteran
service connection for PTSD in January 1989. The RO
contends, in essence, that without certified military
citations or other service department evidence there is no
basis for the determination that the veteran "engaged in
combat with the enemy" and, thus, no basis to establish
service connection for PTSD. Under the provisions of
38 C.F.R. § 3.304(f), service connection for PTSD requires
medical evidence establishing a clear diagnosis of the
condition, credible supporting evidence that the claimed
inservice stressors actually occurred, and a link,
established by medical evidence, between current
symptomatology and the claimed inservice stressor.
Under 38 C.F.R. § 3.304, the evidence necessary to establish
the incurrence of a recognizable stressor during service to
support a claim of entitlement to service connection for PTSD
will vary depending on whether or not the veteran "engaged in
combat with the enemy." See Hayes v. Brown, 5 Vet.App. 60
(1993). Whether or not the veteran "engaged in combat with
the enemy" must be determined through "recognized military
citations or other service department evidence. In other
words, the veteran's assertions that he "engaged in combat
with the enemy" are not sufficient, by themselves, to
establish this fact. The record must first contain
recognized military citations or other supportive evidence to
establish that he "engaged in combat with the enemy." If the
determination with respect to this step is affirmative, then
(and only then), a second step requires that the veteran's
lay testimony regarding the claimed stressors must be
accepted as conclusive as to their actual occurrence and no
further development or corroborative evidence will be
required, provided that the veteran's testimony is found to
be "satisfactory," e.g., credible, and "consistent with the
circumstances, conditions, or hardships of such service."
Zarycki v. Brown, 6 Vet.App. 91 (1993).
The Board supports the RO's recent determination that the
credible evidence of record does not show that the veteran
"engaged in combat with the enemy." While the veteran has
supplied service personnel records indicating that he was
awarded the Purple Heart, the evidence of record clearly
supports the conclusion that the veteran has tampered with
his service personnel records in order to create the
appearance that he was awarded the Purple Heart. This
determination is supported by the following: (1) the August
1994 statement of the Air Force Military Personnel Center,
which reveals the veteran was not awarded a Purple Heart; (2)
the veteran’s contradictory and inconsistent statements; (3)
the DD Form 214 for the veteran’s active service from
February 1951 to February 1956, which appears to have been
altered by the veteran; (4) the credible service personnel
and service medical records, which clearly show no evidence
of the veteran engaging in combat with the enemy and which
directly contradicts the veteran’s testimony and written
statements.
The veteran's verified service personnel records do not show
that he was awarded the Purple Heart, Combat Infantry Badge,
or any similar combat citations. The veteran's military
occupational specialties while in service would also not
support the veteran's contention that he was involved in
combat with the enemy. While it appears that the veteran did
receive the National Defense Service Medal, Army of
Occupation Medal of Germany, the World War II Victory Medal,
the Korean Service Medal, the United Nations Service Medal,
and the Berlin Airlift Device Medal, these decorations, in
and of themselves, do not show the veteran participated in
combat with the enemy, nor do the entries in the unaltered
and confirmed service personnel records reflect that he was
involved in any campaigns.
The veteran has submitted an October 1951 statement from a
Major General S. R. Brentnall indicating that the veteran
received the Purple Heart when wounded while protecting the
perimeter of an airstrip at "K-16." It is important to note
this medal was alleged to have been received by the veteran
in October 1951, when he has testified on numerous occasions
he was a POW of the North Korean Government. did not engage
in " The veteran has also submitted an "Announcement of
Retirement" notice which indicates the award of the Purple
Heart and Silver Star Medal. However, as noted above, recent
inquiries have revealed that the veteran was never awarded
the Purple Heart or Silver Star Medal. Further, neither
document submitted by the veteran is an official service
record and one of these records contradicts his pervious
testimony. Thus, the Board finds these documents are
fallacious and, for the reasons cited above, the Board must
conclude that the service records support a finding that the
veteran did not engage in combat with the enemy.
Since the record does not contain recognized military
citations or other supportive evidence that the veteran
"engaged in combat with the enemy," the Court held in Zarycki
that the record must contain service records which
corroborate the veteran's testimony as to the occurrence of
the claimed stressor. Zarycki, 6 Vet.App. at 98 (emphasis
added). Accordingly, the next question to be addressed is
whether the record contains evidence which collaborates the
veteran's accounts as to the alleged stressful events he
claims to have experienced during his active service in
Vietnam. The case of Zarycki makes clear that the veteran's
lay testimony, by itself, will not be enough to establish the
alleged stressor. Id.
The veteran’s allegations of combat can be divided into 3
parts: (1) he contends that he was wounded in combat in World
War II; (2) he contends that he was wounded in combat during
the Korean War; and (3) he contends that he was a POW of the
North Korean Government.
The veteran alleges that he was wounded in action during
active service in World War II. Recently, he appears to
recant this contention. If a wound were noted in the
veteran's service medical records it would support a finding
that he engaged in "combat with the enemy." However, a
detailed search of the service medical record, which appears
complete, reveals no treatment for the wounds described by
the veteran in his testimony before the RO in November 1989.
It is important to note that while the veteran's separation
examination in September 1966 reports shrapnel wounds in the
anterior tibia, this statement appears to have been based
solely on statements provided to the service medical examiner
from the veteran. On examination at that time, no shrapnel
wound scars were noted. Significantly, in numerous VA
evaluations, no scars have been reported. Most damaging to
the veteran's case on this issue, in his testimony before the
RO in November 1989, he testified that wiring was placed in
both knees as the result of this injury. However, recent
X-ray studies of the knees reveal no such wiring. Further,
he testified that this injury occurred in 1944. However,
both the validated service personnel records and service
medical records reveal that he did not enter active service
until September 1945. In his entrance examination of
September 1945, he specifically denied previous military
service. Thus, for the reasons noted above, the Board must
conclude that the veteran did not serve in combat during
World War II.
The veteran has testified that he was wounded in action
during his active service in Korea. Once again, if this
wound were noted in the veteran's service records it would
support a finding that the veteran engaged in "combat with
the enemy." However, a detailed search of the service
medical record reveals no treatment for this wound. It is
important to note the veteran's testimony in which he
describes vividly a severely disabling injury. However,
after this alleged severe injury, the veteran was able to
perform active service for decades without any known
treatment. The veteran has noted surgery for which no
service medical record reveals surgery, has provided
testimony of incidents which are clearly contradicted by the
service personnel records, and has provided service personnel
records which have been clearly refuted. Thus, the Board
must find that the record does not support the veteran's
contention that he was wounded during his active service in
Korea.
The veteran has also contended that he was a POW of the North
Korean Government from January 1951 to September 1953. He
has reiterated this contention in numerous statements and in
testimony before the RO. Based on the review of the
veteran's service medical records, service personnel records,
and the veteran's post service medical records, statements,
and testimony, the Board is left with the inescapable
conclusion that the veteran has provided false information.
While the veteran has testified that he was a POW of the
North Korean Government from January 1951 to September 1953,
service medical records clearly reveal treatment for
different conditions during this period of time at service
medical centers. These medical records clearly note the
veteran's name and reveal that at the time the veteran claims
to have been in Korea he was stationed in Wiesbaden, West
Germany. For example: Service personnel records clearly
reveal that the veteran was attending dog training school in
November 1953, when he has alleged to have been recovering
from his POW ordeal in a hospital in Japan. Given that the
veteran has repeatedly contended in specific detail his
experiences as a POW, the Board must conclude that the
veteran provided false information in order to obtain VA
benefits. This conclusion is supported by his numerous
statements of the veteran which, in most cases, contradict
each other, the overwhelming record supplied by the RO to
support their conclusion that the veteran was not a POW, and
the altered DD 214 Form.
In summary, the record, at present, does not corroborate the
veteran's accounts of the stressful incidents he claims he
was exposed to during his active service. His “combat”
related shrapnel wound injury reported in his separation
examination, as noted above, is completely unsubstantiated
and based on the veteran's untrustworthy statements.
Authentic service personnel records have, in some cases, been
tainted by the veteran’s deceit.
While PTSD has been diagnosed by several physicians, the
question of whether he was exposed to a stressor in service
is a factual determination and VA adjudicators are not bound
to accept the veteran's statements of exposure to combat
simply because treating medical writers have done so.
Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The veteran's
lay testimony, by itself, will not be enough to establish the
occurrence of an alleged stressor. See Hamilton v.
Derwinski, 2 Vet.App. 671, 674-75 (1992) (appeal dismissed on
other grounds, 4 Vet.App. 528 (1993)). Simply stated, the
record does not contain any records which corroborate the
veteran's statements as to the occurrence of the claimed
stressors.
In West v. Brown, 7 Vet.App. 70 (1994), the Court held that a
psychiatric examination for the purpose of establishing PTSD
was inadequate for rating purposes because the examiners
relied, in part, on the events whose existence the Board had
rejected. Upon reviewing Zarycki and West, it is clear that
in approaching a claim for service connection for PTSD, the
question of the existence of an event claimed as a
recognizable stressor must be resolved by adjudicatory
personnel. If adjudicators conclude that the existence of an
alleged stressor or stressors in service is not established
by the record, a medical examination to determine whether
PTSD due to service is present would be pointless. Although
examiners can render a current diagnosis based on their
examinations of the veteran, it bears emphasis that, without
a thorough review of the record, their opinions regarding
etiology can be no better than the facts alleged by the
veteran. Swann v. Brown, 5 Vet.App. 229, 233 (1993). In
effect, it is mere speculation. See Black v. Brown,
5 Vet.App. 177, 180 (1993).
In light of the fact that there is no credible supporting
evidence that the claimed inservice stressors actually
occurred, entitlement to service connection could not be
granted. Thus, the RO committed clear and unmistakable error
when it awarded service connection for PTSD in its January
1989 rating decision. Accordingly, it must be concluded that
the correct facts were not before the RO in January 1989,
that these facts are currently undebatable and would have
manifestly changed the outcome of the January 1989 rating
decision, and that the veteran is not entitled to service
connection for PTSD. Thus, the veteran's claim for
restoration of his service-connected PTSD is denied.
III. Entitlement to Restoration of Service-connected
Residuals of a
Shell Fragment Wound to the Left Anterior Tibia
As noted above, the veteran's separation examination
indicated that the veteran had suffered from the residuals of
a shell fragment wound to the left anterior tibia. However,
as revealed above, the correct facts, as they were known at
that time, were not before the RO when it granted service
connection for this disability in January 1989. Based on a
review of the medical evidence of record, it is clear that
the separation examination report of a shell fragment wound
was based entirely on the statements supplied to the examiner
by the veteran. The RO in January 1989 was not aware that
the veteran’s service personnel records were altered or that
the veteran had submitted false statements which were not
credible. The award of service connection for the residuals
of a shell fragment wound to the left anterior tibia appears
based, in part, on his assertion that he was awarded the
Purple Heart. A review of the current record does not
substantiate the veteran's contention that he has ever
engaged in combat with the enemy, was ever wounded in action,
or received the Purple Heart. Thus, the facts, as they were
known at that time, were not before the RO. Further, the
Board must find that this error is "undebatable" and, had it
not been made, would have manifestly changed the outcome of
this determination. This determination is made based on the
record and law that existed at the time of the prior
adjudication in question. See Damrel, 6 Vet. App. 245. In
the alternative, it is the finding of the Board that the
veteran submitted false information and that the record
otherwise did not support the grant of service connection.
Thus, restoration of service connection for either PTSD or
for the residuals of a shell fragment wound of the left
anterior tibia is not found.
IV. Entitlement to Service Connection for the Residuals of a
Shell
Fragment Wound to the Right Leg, Kidney Stones,
and for the Residuals of Status Post Small Intestinal Surgery
Unlike civil actions, the VA benefit system requires more
than just an allegation. The claimant must submit supporting
evidence. Furthermore, the evidence must be sufficient to
justify a belief by a fair and impartial individual that the
claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609
(1992). The evidence submitted by the veteran in support of
his claim of entitlement to service connection for the
residuals of a shell fragment wound to the right leg, the
residuals of kidney stones, and the residuals of small
intestine surgery consists of his own statements. No
objective medical evidence has diagnosed the veteran with
these conditions or with the residuals of these conditions.
While the service medical records reveal treatment for kidney
stones, it is important to note that the veteran at no point
passed a kidney stone. Further, post service medical
evidence of record reveals no treatment for this condition.
Moreover, no competent medical professional has diagnosed the
veteran with an ongoing kidney stone disorder. Further, with
regard to the veteran's claim of entitlement to service
connection for the residuals of a shell fragment wound to the
right leg, no medical examiner has noted scarring of the
right leg or other evidence of a shell fragment wound to the
right leg.
The Court has held that a lay party is not competent to
provide probative evidence as to matters requiring expertise
arrived at by specialized medical education. Espiritu v.
Derwinski, 2 Vet.App. 492, 494 (1992). Moreover, the Court
has held that, where the determinative issue involves medical
causation or diagnosis, there must be competent medical
evidence supporting a claim to make it "plausible" and, thus,
well grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993).
The veteran's lay assertions to the effect that a causal link
exists between his subjective symptoms and his active service
are neither competent nor probative of the issue in question.
Indeed, in Moray v. Brown, 5 Vet.App. 211 (1993), the Court
noted that lay persons are not competent to offer medical
opinions and, therefore, those opinions do not even serve as
the basis for a well-grounded claim.
In Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992), the
Court, finding no evidence of a current disability, held that
a claim was not plausible and, therefore, not well grounded.
In this case, as noted above, there is no current evidence
that the veteran has the residuals of a shell fragment wound
of the right leg, the residuals of kidney stones, or the
residuals of postoperative small intestine surgery. As noted
earlier, under the controlling law in decisions of the Court,
the initial burden is on the shoulders of the veteran to
demonstrate that the claim is well grounded. See Murphy,
1 Vet.App. 81.
With regard to the veteran’s contention that service medical
records are missing, the Board has found the veteran’s
statements to be not credible. Further, a review of the
service medical records reveal no apparent gaps or missing
records.
In light of the discussion above, the application of law to
the facts in this case mandates the conclusion that the
veteran's claims of service connection for the residuals of a
shell fragment to the right leg, the residuals of kidney
stones and the residuals of status postoperative small
intestine surgery are not well grounded.
V. Entitlement to Service Connection for a Bilateral Knee
Disability
and for Carpal Tunnel Syndrome of Both Wrists
With regard to the veteran's claims of entitlement to service
connection for a bilateral knee disability and service
connection for carpal tunnel syndrome of both wrists, recent
medical evidence of record has indicated that the veteran has
undergone carpal tunnel release and that he currently suffers
from the residuals of some form of bilateral knee disability.
The bilateral knee disability is noted in X-ray studies taken
in September 1992. However, as the Court recently held in
Caluza v. Brown, 7 Vet.App. 498, 506 (1995), one of the three
basic elements in a well-grounded claim includes evidence of
a nexus between the inservice injury or disease and the
current disability. Grottveit v. Brown, 5 Vet.App. 91, 93
and Lathan v. Brown, 7 Vet.App. 359 (1995).
Based on the evidence above, the Board has found that the
veteran has provided competent evidence of a current
bilateral knee disability and the residuals of carpal tunnel
syndrome. Further, the veteran has provided lay evidence in
the form of his own statements to the effect that these
disabilities occurred during his active service. See
Cartwright v. Derwinski, 2 Vet.App. 24, 25 (1991) and Layno
v. Brown, 6 Vet.App. 465 (1994). However, he has provided no
evidence of a nexus between the alleged inservice injury or
disease and the current disability. Service medical records
reveal no treatment of carpal tunnel syndrome or of a chronic
bilateral knee disability. Further, the veteran has provided
no medical evidence to support his contention that his
current disabilities are associated to service. While the
veteran is competent to provide probative eyewitness evidence
of visible symptoms, a lay person cannot provide probative
evidence as to matters which require specialized medical
knowledge acquired through experience, training or education.
Espiritu, 2 Vet.App. at 494. In this case, the veteran has
provided no competent medical evidence to associate his
current disabilities with his active service. In light of
the discussion above, the application of law to the facts in
this case mandates the conclusion that the veteran's claims
for service connection for a bilateral knee disability and
carpal tunnel syndrome of both wrists are not well grounded.
In Robinette v. Brown, 8 Vet.App. 69 (1995), the Court held
that, while the claim was not well grounded, the VA had
imposed upon itself a further duty to advise the appellant of
what additional evidence was necessary to complete the
application for the benefit sought under 38 U.S.C.A.
§ 5103(a) (West 1991). The Court found in the facts of
Robinette that this duty had not been discharged. In this
case, however, the Board must conclude that a remand under
38 U.S.C.A. § 5103(a) cannot be justified. The RO
effectively exceeded the mandates of Robinette by embarking
upon extensive efforts not merely to advise the veteran of
the need for evidence, but by making concerted efforts to
actually secure evidence. An additional remand under
38 U.S.C.A. § 5103(a), is not warranted. It is important to
note that had the Board found the veteran's claims well
grounded, the overwhelming evidence of record, including the
clear attempts by the veteran to falsify information, would
support a denial of all of the veteran's claims for service
connection.
VI. Entitlement to Increased Evaluations for the
Veteran's Service-Connected Hemorrhoids,
Residuals of a Nasal Fracture, Migraine
Headaches, and Dermatitis
Disability evaluations are determined by the application of a
schedule of ratings which is based on average industrial
impairment. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate
diagnostic codes identify the various disabilities. A
compensable evaluation for hemorrhoids is warranted when the
hemorrhoids are large or thrombotic, irreducible, with
excessive redundant tissue, and evidencing frequent
recurrences. 38 C.F.R. Part 4, Diagnostic Code 7336
(emphasis added). A compensable evaluation for the residuals
of a nasal fracture is warranted when there is marked
interference with breathing space. 38 C.F.R. Part 4,
Diagnostic Code 6502. Entitlement to a compensable
evaluation for migraine headaches is warranted with
characteristic prostrating attacks averaging one or two
months over the last several months. With less frequent
attacks, a noncompensable evaluation is warranted. 38 C.F.R.
Part 4, Diagnostic Code 8100. The veteran's service-
connected dermatitis has been evaluated under Diagnostic
Codes 7806, 7817. Under those codes a compensable evaluation
is warranted with exfoliation, exudation or itching, if
involving an exposed surface or extensive area. With slight,
if any, exfoliation, exudation or itching, or if on a
nonexposed surface or small area, a noncompensable evaluation
is warranted. 38 C.F.R. Part 4, Diagnostic Code 7806.
The record contains no current objective medical evidence of
impairment due to, or as the result of, hemorrhoids, the
residuals of a nasal fracture, migraine headaches, or
dermatitis. The veteran has undergone numerous VA
evaluations, several hospitalizations, and has availed
himself of outpatient treatment at VA medical centers.
However, a review of the veteran's total medical history
would not support a finding of a compensable evaluation for
any of the disabilities listed above. While the veteran has
testified to having a periodic hemorrhoid condition,
difficulties breathing, frequent migraine headaches, and
dermatitis, no objective medical evidence of record would
support a compensable evaluation for these disabilities.
Further, in light of the veteran's attempts to falsify
information to gain VA compensation, the Board finds his
statements with regard to symptomatology of his service-
connected disabilities not to be credible and, accordingly,
cannot form the basis of a decision to award increased
compensation. The veteran’s statements and testimony with
regard to both his service-connected disabilities and his
claims for service connection are replete with
contradictions, discrepancies, and statements rebutted by the
medical evidence of record. The statements regarding the
alleged pain and flare-ups he suffers as the results of his
service-connected disabilities are inconsistent and lack all
credibility. For example, the veteran’s statements regarding
how many migraine headaches he suffers and their duration
changes with each declaration. There is no consistency in
his statements and no supporting evidence of a disability
associated with these conditions. Accordingly, the Board
must conclude that the veteran is not credible and his
subjective complaints concerning these disabilities can not
form the basis of an increased evaluation for the service
connected disabilities at issue. The medical evidence of
record would not support a finding of a compensable
evaluation for any of the veteran's service-connected
disabilities. The veteran has not sought treatment for these
conditions and no objective medical evidence substantiates
his claims of disability associated with these conditions.
In DeLuca v. Brown, 8 Vet.App. 202 (1995), the Court held
that examinations upon which rating decisions are based must
adequately portray the extent of functional loss due to pain
on use or due to flare-ups. The veteran’s complaints of pain
and weakness must be taken into consideration by the Board.
38 C.F.R. § 4.40 and 4.45. However, determining the extent
of functional loss due to pain or flare-ups in this case is
problematic in light of the veteran's frequent falsified
statements and testimony. He has consistently provided false
statements regarding his claims for VA compensation benefits.
Accordingly, the Board must find that his complaints of pain,
function loss, and flare-up of his service-connected
disabilities are not credible and may not form the basis of a
compensable evaluation. Simply stated, in light of the
veteran’s falsifications, the Board finds that his subjective
complaints are not credible. Thus, any compensable
evaluation of the service-connected disabilities at issue
must be based on objective evidence. The veteran has
provided no evidence that he receives any treatment for these
disabilities and the recent VA evaluation reveals no
objective evidence indicating a disability associated with
these conditions. Accordingly, given that no credible
evidence exists to support a basis for a compensable
evaluation, the veteran’s claims are denied. Even if the
Board were to assume his subjective complaints were true,
these disabilities, in light of the recent medical evidence
of record, would not support compensable evaluations for the
reasons noted above. Thus, even under the provisions of
38 C.F.R. §§ 4.40 and 4.45, the Board must find that
compensable evaluations for the veteran's service-connected
disabilities are not warranted.
The Board has also considered the provisions of 38 C.F.R.
§ 3.321(b)(1); however, the evidence fails to show that the
service-connected disabilities at issue are so exceptional or
unusual as to warrant the assignment of an extraschedular
evaluation. The medical evidence does not indicate that the
conditions noted above have caused difficulties in the
veteran's industrial adaptability, hospitalizations, or
extended treatment which would warrant compensable
evaluations. The Board has also considered all of the
potential applicable versions of 38 C.F.R. Parts 3 and 4
(1995), whether or not they have been raised by the veteran,
as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991).
However, there is no section that provides a basis upon which
to assign a higher disability evaluation for the reasons
discussed herein.
For reasons which are clear above, the veteran's claims of
entitlement to increased compensation for his once service-
connected PTSD and shell fragment wound to the left anterior
tibia are dismissed.
ORDER
Restoration of service connection for PTSD is denied.
Restoration of service connection for the residuals of a
shell fragment wound to the left anterior tibia is denied.
Entitlement to increases in the evaluations for the veteran's
previously service-connected PTSD and for the previously
service-connected residuals of a shell fragment wound to the
left anterior tibia are dismissed.
Entitlement to service connection for the residuals of a
shell fragment wound to the right leg is denied.
Entitlement to service connection for a bilateral knee
disability is denied.
Entitlement to service connection for carpal tunnel syndrome,
both wrists, is denied.
Entitlement to service connection for kidney stones is
denied.
Entitlement to service connection the residuals of
postoperative small intestine surgery is denied.
Entitlement to a compensable evaluation for hemorrhoids is
denied.
Entitlement to a compensable evaluation for the residuals of
a nasal fracture is
denied.
Entitlement to a compensable evaluation for migraine
headaches is denied.
Entitlement to a compensable evaluation for dermatitis is
denied.
REMAND
As previously noted, the February 1995 rating decision by the
RO also denied entitlement to a compensable rating pursuant
to 38 C.F.R. § 3.324. However, this issue was not
subsequently issued in either the supplemental statement of
the case or the statement of the case issued in March 1995.
Accordingly, this issue is remanded to the RO for further
action as follows:
The RO should issue a supplemental
statement of the case which includes a
citation and discussion of the
applicability of 38 C.F.R.§ 3.324. The
veteran and his representative should
then be afforded the opportunity to
respond.
Thereafter the case should be returned to the Board for
further review of this issue. The purpose of this remand is
to ensure that requirements of due process are met.
By this action, the Board expresses no opinion as to the
ultimate outcome of this issue.
D. C. SPICKLER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
Supp. 1995), a decision of the Board of Veterans' Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402 (1988). The date which appears on
the face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals. Appellate rights do not attach to those
issues addressed in the remand portion of the Board’s
decision, because a remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the
merits of your appeal. 38 C.F.R. § 20.1100(b) (1995).
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